Comments 1. Legislative history.-Section 308 corresponds to the provisions contained in sections 339 and 339A of the old Code, i.e. sub-sections (1) to (3) of this section correspond to old section 339 and subsections (4) and (5), to old section 339-A. 2. Scope of provision.-Section 308 deals with the trial of a person to whom a conditional pardon has been granted under section 306 or section 307, if the public prosecutor certifies that that person has not fulfilled the condition of full and complete disclosure.1 A mere tender of pardon does not attract the provision of section 308. There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness. It is only thereafter that the provisions of section 308 come into play. Where a pardon though tendered is not accepted, no question arises about the applicability of section 308, because the provisions of section 308 can only come into operation if there is in existence an effective pardon under section 306 or section 307 of the Code.2 The words "such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty" in section 308, indicate that the intention of the Legislature was either to launch prosecution under the original case or under section 193., I.P.C. otherwise instead of the word "or" the word "and" between the words "tendered" and "for any other offence" should have been found. It is, therefore, unfair to the approver to prosecute him for perjury when he was being tried for the original offence.3 Having regard to the language of section 308, pardon granted under section 306, protects the person concerned not only against prosecution for the offence in which the pardon was granted but also from prosecution for any other offence of which he appears to have been guilty in connection with the same matter.4 Once pardon is granted under provisions of section 306 or 307, by the court, it cannot be revoked by the court unless the procedure indicated in section 308, is followed. The Prosecutor should certify that the approver has wilfully concealed the material facts or has falsely deposed before the court. In the case of giving false evidence, the matter is required to be referred to the High Court and the High Court may order that the accused be prosecuted for offence of perjury.5 3. Certificate of public prosecutor.-Before the amendment of old section 339 (corresponding to this section) in 1923, it was held in some cases that the proper person to sanction the prosecution of an approver on the ground that he had broken his pardon was the District Magistrate and not the Sessions Judge.6 In some cases it was held that the Sessions Judge had jurisdiction to direct the commitment of the approver to the sessions for trial on the original charge.7 However, sub-section (1) of old section 339 as amended and also sub-section (1) of section 308 makes the certificate by a public prosecutor the sole basis of a prosecution of an approver and, therefore, an approver cannot be prosecuted at the instance of a suggestion by the Presiding Judge that he should be so dealt with.8 Under the section, as worded, the certificate of the public prosecutor is essential to the validity of the trial. 9 The absence of a certificate required under this section vitiates the trial.10 It is only when the public prosecutor certifies that the approver has not complied with the conditions on which the tender of pardon under section 306 or 307, was made by wilfully concealing anything essential or by giving false evidence, that he may be tried under section 308 not only for the offence in respect of which pardon was granted but also in respect of other offences.11 The person who is authorised to grant a certificate under section 308, is the public prosecutor, who conducted the case in which the pardon was granted, and he need not necessarily occupy the position of public prosecutor on the date on which he grants the certificate.12 A certificate under section 308 cannot be said to be without jurisdiction because it was issued by a public prosecutor who was put in charge of the case subsequently and not by assistant public prosecutor who was originally in charge of the case. The general powers of control which the District Magistrate and the public prosecutor exercise are sufficiently wide to justify a prosecution being taken out of the hands of a particular assistant public prosecutor at any stage of the proceedings and there is nothing in the Code which requires that when a

public prosecutor has once appeared in a case, all further proceedings must be conducted by him.13 (i) Contents of certificate.-The certificate granted under section 308, cannot be said to be defective, because it does not mention the particulars in regard to which the pardon is alleged to have been forfeited. Section 308 does not require that any such particulars shall be given in the certificate.14 (ii) Certificate where to be filed.-The certificate of the public prosecutor, which is required under section 308, as a condition precedent to the trial of an approver, has to be filed before his trial commences in the court of session ; the trial in such a case really begins only in the session court and the enquiry before the committing Magistrate is not a trial. It is not, therefore, absolutely essential that the certificate should be filed in the court of committing Magistrate before the enquiry by him commences. Even if the certificate should be held necessary for the purpose of initiating proceedings in the court of the committing Magistrate, the absence of it in that court is not fatal.15 4. No formal withdrawal of pardon necessary.-Under the Code of 1898, it was held that the substitution of the word "forfeit" for "withdrawn" makes it unnecessary for a Magistrate to withdraw or cancel the pardon before trying the approver.16 No formal withdrawal of a pardon and no formal declaration that a pardon has been forfeited are required before proceeding against a person who accepted a conditional pardon but violated the condition thereof.17 5. "Accepted such tender".-When the person to whom a pardon is tendered volunteers to make some statement with reference to the crime, the tender is accepted.18 A pardon referred to in this section is an accepted pardon. The acceptance must continue in force till the person pardoned actually gives evidence and it is only then that any question would arise as to whether he has forfeited the pardon by his not giving true evidence in the case. Where a person to whom a conditional pardon was tendered, made a statement to the court before he was put into the box that he did not want the pardon and that he wished to be tried, it was held that, as the pardon, though accepted for a time, was rejected by the accused himself before it really took effect, the case did not fall under section 308 and that the so-called pardon was not a bar to his trial.19 6. Condition precedent for trial of approver-Non-compliance with condition of pardon.-The making of a full and true disclosure is not a condition precedent to the pardon under the Code, but making an incomplete and false disclosure, is a condition subsequent by which the pardon which was originally before in force, becomes forfeited.20 An approver can only be tried for the offence pardoned only if it is shown, that he wilfully concealed anything essential or gave false evidence21 or is unwilling to step in the witness-box on behalf of the prosecution.22 The approver fails to comply with the condition on which a tender of pardon is made as soon as it is established that his disclosure is not a true and full one, and that it is not a true and full disclosure becomes apparent as soon as he is shown to have made a statement entirely inconsistent with the one upon the strength of which the pardon was granted.23 A pardon is offered upon two main conditions, first that the accomplice shall make full, second a true disclosure of all he knows about the crime. The pardon is forfeited by his failure to comply with these conditions in two corresponding ways, first by concealing some material fact, that is to say, by not making a full, or by giving false evidence, i.e., by not making a true disclosure. (i) 'False evidence'.- The words "false evidence" must be read subject to the limitation of their contest, as defining one of the modes of non-compliance with the conditions of the pardon and not in their fullest literal sense.24 The section does not enact that a person who has accepted a tender of pardon, renders himself liable to be tried for the offence in respect of which pardon was tendered, if he gives false evidence ; what the section says is that he renders himself so liable if by giving false evidence he has not complied with the conditions on which the tender was made.25 (ii) Stage of non-compliance.-The obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence. If at any stage he either wilfully conceals material particulars or gives false evidence, he would have failed to comply with the conditions, on which the pardon was tendered to him and thereby incurred its forfeiture. Neither as a matter of reason or logic, nor as a matter or statutory interpretation can it be said that section 308(1) is dependent on or connected with section 306 in the sense that the approver must be examined both in the committing court and the session court before it can be held that he was forfeited his pardon. It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage.26 The approver commits a breach of the conditions, if he fails to make a full and true disclosure throughout. It is not enough for him to make such disclosure before the committing Magistrate if he withdraws it in the session court, or to make it when examined in chief if he withdraws it in crossexamination.27 It is not sufficient for an approver to give true evidence at only one stage of the case.28 But where an approver after accepting pardon under section 306 denies all knowledge of facts before the committing Magistrate on account of the threats and influences of the co-accused with whom he was placed in the same prison cell, and after being separated from the co-accused makes a full and true disclosure of facts relating to the offence before the session court, it cannot be said that the

accused has forfeited his pardon. When the evidence given by the approver in the session court is in accordance with the conditions of his pardon and is evidence upon which reliance may very well be placed, then the fact that in the committing Magistrate's court the approver gave false evidence cannot necessarily be taken to be non-compliance with the conditions of pardon.29 (iii) Other concepts.-The mere fact that an accused person, who is granted a pardon but who is evidently a man of low intellect makes certain damaging statements in cross-examination but did not actually resile from his previous statement and again in re-examination sticks to his confession, should not be held to justify the conclusion that he has deliberately broken the conditions upon which pardon was granted.30 Where the evidence given by the accused person to whom a pardon has been granted differred from the confession but it appeared that the alteration did not materially affect the result of the case and it further appeared that nearly five months had elapsed between the date of confession and date on which evidence was given, it was held that the prosecution had not discharged the burden of proving that the condition of the pardon was not complied with.31 The question as to how far a pardon should protect the approver should not be treated in a narrow spirit. When a pardon has been tendered to one of the accused and his evidence taken, he cannot be tried again for the offence in regard to which the pardon has been tendered simply because his evidence was not corroborated, and the other accused, therefore, was discharged.32 Strictest faith should be kept with the approver and his mere failure to secure the conviction of his accomplices does not justify the withdrawal of the pardon.33 It is improper to withdraw a pardon of the approver when the evidence in the case has not been heard and when there is no proof that the approver's statement is inconsistent in any but the most immaterial points with previous statements made by him and before any evidence affecting the approver's veracity had been given.34 (iv) Screening one of several accused.-An approver who had screened one of his four accomplices, is liable to have his pardon forfeited notwithstanding that he helps to secure the conviction of the other three.35 (v) Fulfilment of condition with regard to some of the charges. -When a pardon has been tendered with respect to several charges, and the approver had fulfilled the conditions with regard to some and has not fulfilled the conditions with regard to others, is entitled to the benefit to the pardon with respect to the former charges.36 (vi) "Entitled to plead" [Sub-section (3)].-Even before the addition of the proviso to sub-section (1) as above it was held that when a pardon had been tendered and the approver then put on trial, he can plead his having satisfied or fulfilled the conditions of his pardon in bar to his trial.37 (vii) Non-compliance with condition-Onus probandi.-Under the proviso to sub-section (1), it is for the prosecution to prove that the conditions upon which the pardon has been tendered have not been complied with. Even prior to the enactment of this proviso, it was held that it was for the prosecution to prove that the pardon had been forfeited.38 Under sub-section (3) of section 308, the accused is entitled to plead that he had complied with the conditions on which the tender of pardon was made and it shall be the burden of the prosecution to prove that such conditions have not been complied with. Merely stating in the judgment that the accused has not complied with the conditions of pardon is not sufficient. Failure to follow this procedure vitiates the trial.39 7. Joint trial of approver with other accused, illegal.-According to the first proviso to sub-section (1) of section 308, the approver cannot be tried jointly with other accused in the case.40 Even prior to the insertion of this proviso in old section 339(1), it was held in some cases that the approver, on not fulfilling the conditions, could not be committed and tried along with other accused.41 If the accomplice accepting tender of pardon under sections 306/307, wilfully conceals anything essential or gives false evidence or does not comply with the condition on which the tender was made, he can only be tried in separate proceedings, inter alia for the offence in respect of which the pardon was tendered as provided for in section 308.42 Where an accused who was tendered pardon under section 306, subsequently expresses unwillingness to give evidence, he forfeits the pardon but he cannot be tried jointly with the other accused according to section 308.43 It was held that the approver could not be proceeded against, much less committed for trial, before the trial of the offence with respect to which pardon had been tendered to him, had been concluded.44 But in some cases it was held that the approver whose pardon had been forfeited could be committed for trial along with the other accused.45 These cases were superseded by the proviso added to sub-section (1) of old section 339 (corresponding to section 308) by the Amendment Act XVIII of 1923, which expressly prohibits the joint trial of the approver with any of the other accused.46 The joint trial of a person, to whom pardon had been tendered but subsequently withdrawn along with other accused, is a serious illegality vitiating the whole trial being contrary to the provisions of section 308.47 8. Sessions Judge cannot try approver without commitment.-A Sessions Judge cannot put an approver in the dock on his making wilfully false statements and convict him even on his own plea of

guilty, as the session court cannot take cognizance of any offence without commitment.48 9. Statement must be of "person who has accepted tender of pardon" [Sub-section (2)]-The statement referred to in sub-section (2) must be of a person who has accepted a tender a pardon.49 But the statement made by the prisoner on a promise of pardon is no evidence against him.50 (i) "Statement".-The words "the statement made by such a person accepting the tender of pardon" used in sub-section (2) of section 308 are wide enough to cover a statement made by him before the pardoning Magistrate prior to his examination in the committing Magistrate's court.51 But in 3 Rang 224, it was held that the preliminary examination of the approver by the Magistrate, prior to his examination in the committal court, was not permissible and that sanction for perjury should not be granted on the basis of the same. The word "statement" appears primarily to refer a statement made by an accused person as a witness as contemplated in section 308 in the course of an enquiry or trial. It may also include a statement recorded under section 164 after the tender of pardon but it can in no case include a confessional statement made by an accused person before the tender of pardon unless it was recorded in accordance with the strict procedure provided by sections 164 and 281 for recording confessions.52 When an approver had been tendered a pardon under section 306 and he has accepted the tender, his statement can be legally recorded under section 164 on affirmation ; and such a statement will be admissible in evidence against him at a subsequent trial, after forfeiture of the pardon, for an offence in respect of which the pardon was tendered.53 (ii) Statement before Magistrate admissible, even if approver is not examined at the trial. -The approver's evidence before the committing Magistrate is a statement within the meaning of section 308 and can be used against him in evidence when the pardon has been forfeited.54 A statement made by an approver before the committing Magistrate can be used against him even though he was not examined as a witness in the trial.55 Reference to the statement in section 308(2), would include a statement recorded by a Magistrate under section 306, and not merely a statement which may have been recorded prior to his examination by the Magistrate as provided in section 306.56 (iii) Use of approver's statement.-The statement made by an approver on oath can be used in evidence against him after the pardon has been withdrawn.57 The statement of the approver, incriminating himself, will be evidence against him if he is put upon his trial, even though the statement be subsequently withdrawn.58 The statement of an approver is in the nature of a confession, and when it is withdrawn it should be regarded in the light of a retracted confession and must be corroborated in material particulars. Before an approver can be convicted, his guilt must be proved with that degree of certainty which the law requires.59 Where the statement of the approver who has forfeited his pardon is in its general aspect abundantly corroborated and there could be no doubt of the truth of the story told in it, such statement alone would be sufficient evidence for his conviction.60 When an approver retracts from his statement in the committing court, and he is tried for the same offence after the forfeiture of the pardon, he can be convicted on his own statement which amounts to a confession. It does not require corroboration as an approver's evidence.61 But it was held that where a Magistrate withdrew the pardon granted by him to the accused on his making a statement in the witness box, which was a complete retraction of the confession made by him, the confession could not be made the basis of the conviction of the accused. The fact that he retracted the confession at the earliest opportunity in spite of the promise of pardon was a very strong circumstance against the truth of the confession made by him.62 (iv) Statement, if governed by section 24, Evidence Act.-A statement falling under sub-section (2) of section 308 is removed from the operation of section 24 of the Evidence Act.63 Where in spite of being in police custody an approver is neither subjected nor threatened to be subjected to any ill-treatment, the statement made by him will not become inadmissible under section 24, Evidence Act.64 Section 308(2), is in the nature of exception to section 164 and section 24, Evidence Act, and the deposition made by an approver in the committing Magistrate's court may be legitimately used against him, though it is subsequently retracted by him, when he is tried on non-compliance with the condition of his pardon. It cannot be said that such evidence is tainted because the approver (accused) made the statement with the hope of getting release from the charge. A person who accepts a pardon also accepts the grave risk of not departing from the truth on pain of being charged with the offence if he abuses the privilege granted to him. The statement is not a "confession".65 The accused himself originally stated that he confessed because he was afraid he might be beaten and got confused and thought that the murder was bound to come out. The actual statement he made was clearly induced by promise of pardon and it was not made under pressure. It was held that the statement was admissible under section 308(2).66 But where an approver made a deposition before the committing Magistrate, but in the session court, withdrew it in toto upon the allegation that it was not a voluntary statement but one made under coercion by police, it was held that even if the section had any applicability it would be better to discard

such statement.67 (v) Use of statement as basis of charge of perjury.-Section 308(2), which expressly provides that the statement of an approver who has forfeited his pardon may be used as evidence against him when tried for the offence in respect of which the pardon was tendered, does not prohibit its use when tried for any other offence. Such statement may be used as the basis of a charge of perjury.68 (vi) Evidence must be let in at trial as to identity of approver.-The evidence given by the approver cannot be used against him in his subsequent trial, if he forfeits his pardon, without evidence being first let in as to his identity.69 (vii) Requirement is mandatory.-The requirement under this section for pardon is mandatory and non-compliance thereof would vitiate trial.70 10. Sanction of High Court for trial for offence of giving false evidence (i) Second proviso to sub-section (1)-Object of.-The object of the second proviso to sub-section (1) of section 308 is to safeguard persons whose pardons have been withdrawn, against a prosecution for false evidence given by them while deposing under offer of pardon unless and until the propriety of such prosecution has been considered and determined by the highest criminal tribunal of the State. That object would be wholly defeated if a Sessions Judge is competent to try such a person forthwith upon withdrawal of the pardon without any independent consideration by the superior tribunal of the propriety of the proceedings being taken against him.71 (ii) Procedure to obtain sanction.-Where it is desired to obtain the sanction of the High Court to prosecute an approver for giving false evidence after the grant to him of a pardon, under section 308, the proper procedure is for the State to move the High Court by motion in open court and not by letter of reference. No order can be passed on a letter of reference.72 A motion on behalf of the State must be made for obtaining the High Court's sanction under the second proviso to section 308(1).73 Where a person to whom a pardon was tendered under section 306 is proved to have given false evidence and an application is made to the court to prosecute him on that account, sanction cannot be given unless the public prosecutor certifies that in his opinion the person who has accepted such tender has either by wilfully concealing anything essential or by giving false evidence not complied with the condition on which the tender was made.74 (iii) Sanction on alternative charges.-If the accused to whom a pardon is legally tendered makes a statement on oath which he retracts in a subsequent judicial proceeding a proper sanction is necessary for a prosecution for giving false evidence on each branch of the alternative charges.75 (iv) Prosecution without sanction illegal.-Prosecution without sanction of the High Court is not a mere irregularity curable under section 465, infra, but is an illegality which vitiates the proceedings.76 (v) Sanction when approver not examined as witness.-The High Court can sanction the prosecution of an approver for an offence under sections 193 and 194, I.P.C., in respect of a statement made by him which is prima faciefalse even though the approver has not been examined as a witness in the case in connection with which he made his statement.77 (vi) Principles regulating grant of sanction.-The discretion vested in the High Court under the second proviso to section 308(1) to accord sanction to prosecute an approver for perjury must be exercised with extreme caution. Ordinarily, it should be exceedingly difficult for an approver to give positive evidence as to his having made the incriminating statement under undue influence or as a result of coercion by the police. It sometimes happens that, when an investigating officer is confronted with a weak case, he in his misplaced zeal attempts to bolster it by getting hold of an approver ; and if there is any such indication, in the circumstances of a particular case, sanction ought not be given under section 308 for the prosecution of the approver.78 The cardinal question for consideration in such a case is whether the incriminating statement made by the approver, was or was not true. The fact that the approver had made two contradictory statements cannot be a warrant for directing his prosecution.79 B was tendered in evidence as an accomplice giving evidence under a conditional promise of pardon. Before the committing Magistrate he gave evidence that the accused had committed murder. When examined again before the same officer, he said that his previous statement was false. Before the Sessions Judge he again returned to his first statement. It was held that a witness, who was in any way induced to make a false statement in connection with a capital charge, should be allowed every possible, locus penitentiae, and sanction to prosecute him should not be given merely on the ground that he contradicted himself before the committing Magistrate.80 When the High Court is asked to exercise the power vested in it for the prosecution of the approver for giving false evidence the cardinal question for consideration is whether the confession and the incriminating statement made by the approver were or were not true. If the circumstances point to the conclusion that they were not true, the irresistible inference must be that those statements were put

into the mouth of the approver by some one by inducement or by threat and in such a case it would be opposed to public policy to prosecute and to punish him for the offence of giving false evidence when as a matter of fact he did not voluntarily make the incriminating statement. On the other hand, if it appears that the confession and the incriminating statement represented the true state of facts and the approver in collusion with the accused resiled from the statement previously made by him, his subsequent statement must be false and in such a case it is not only desirable but expedient to order his prosecution for giving false evidence. The exercise of the discretion must, therefore, depend on the answer to the question whether the confession was or was not voluntary ; in considering that question the fact that, on the promise of pardon being tendered to him, it is very easy to pursuade an illiterate villager to make a confession should not be lost sight of.81 The mere fact that two contradictory statements are made by the approver cannot in every case be a warrant for directing the prosecution of the approver for perjury. The discretion vested in the High Court to accord sanction for the prosecution must be exercised with extreme caution.82 If a person to whom pardon has been administered has made contradictory statements but in the later statement has reverted to truth, it is undesirable that he should be prosecuted for perjury by making contradictory statements.83 The prosecution for perjury is an exceptional measure and sanction ought not to be granted when material has only been provided by an unnecessary examination on oath. Where at the instance of the police the statement of the approver to whom pardon was granted was recorded by the committing Magistrate prior to his examination as witness in the committal proceedings and from that statement the approver resiled, when examined as a witness in the committal proceedings, it was held that the preliminary examination of the approver was not permissible and cannot form the basis of granting sanction to prosecute him for perjury. It was further held that the proper course would be to prosecute the approver for the original offence and not for perjury.84 It is not necessary that an approver should be punished for perjury, if he can be punished sufficiently both for that and the original crime on a conviction for that original offence. Sanction ought to be refused, unless it appears that a conviction for the original crime is unlikely, or a prosecution for it undesirable for any other reason, or that, on a conviction for the original offence, the sentence that could be passed would be too light to cover both offences. Before sanction can be granted, therefore, it must be shown that there is no intention of prosecuting the approver for the original crime, or that he has already been prosecuted for it and either has been acquitted or has received or is likely to receive such a light sentence that it is not sufficient to cover his crime of perjury.85 11. Sub-section (4)-Imperative.-Under sub-section (4) of section 308, the accused should be asked whether he pleaded that he had complied with the condition on which a tender of pardon was made. The terms of the sub-section should be clearly explained and it should be made clear to him that he could plead the pardon as a bar to his trial.86 Where the accused was not asked in the manner provided by the sub-section, but was asked whether he had fulfilled the conditions on which the pardon has been granted, and had given true evidence, it was held that there was not proper compliance with the subsection.87 The provisions of this sub-section are compulsory and the failure of the court to comply with them vitiates the trial.88 The record should show that the approver was asked whether he pleaded that he had complied with the conditions on which the tender of pardon was made.89 12. Judgment of Sessions Judge inverting the order of issues-Effect.-In his judgment, the Sessions Judge had come to a definite finding that the approver has failed to comply with the conditions of his pardon. But he inverted the order of issues ; he first discussed the question whether the approver was guilty of the offence charged and later took up the question if he had complied with the conditions of his pardon. It was held that under the circumstances, that the Sessions Judge had not committed any irregularity which would vitiate the trial, as the one question was closely connected with the other.90 ________________________________________________________ 1. AIR 1938 PC 266 : 65 IA 388 : (1938) 2 MLJ 780 (PC). 2. 1959 SCJ 198 : (1959) Cr LJ 102 : AIR 1959 SC 13. 3. State v. Gurdial Singh Mohender Singh, 1967 Cr LJ 247 (Punj). 4. B.M. Lamba v. State, 1971 Cr LJ 1357 (All). 5. State v. Ramasi Devasi Bhil, 1991 Cr LJ 2801 (Guj). 6. 37 All 331. See also 30 Bom 611 ; 37 Cal 845 (FB) ; 8 LBR 447 : 35 IC 513. 7. 176 PLR 1905 : 31 PR (Cri) 1904, followed in 1 Lah 218. See also AIR 1924 Lah 568 ; 59 IC 580 (Nag). 8. 26 Bom LR 1240 : AIR 1925 Bom 135 ; ILR (1947) All 215 : AIR 1947 All 71 (Condition requiring certificate of the public prosecutor cannot possibly be fulfilled by the latter agreeing with the opinion of

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